The slides discuss in detail the subjects of International Law. Useful for Law Students and professionals.

1. C
SUBJECTS OF
INTERNATIONAL LAW
-SHIVANI SHARMA, ASST. PROF
-SARDAR PATEL SUBHARTI INSTITUTE OF LAW

2. INTRODUCTION
• A subject of international law is an entity possessing international
rights and obligations and having the capacity
(a) to maintain its rights by bringing international claims; and
(b) to be responsible for its breaches of obligation by being subjected to such claims.
• All that can be said is that an entity of a type recognized by customary
law as capable of possessing rights and duties and of bringing and
being subjected to international claims is a legal person.
• If the latter condition is not satisfied, the entity concerned may have
legal personality of a very restricted kind.

3. Cont…
• Apart from states, organizations may have these capacities
and immunities if certain conditions are satisfied.
• Thus it is states and organizations which represent the
normal types of legal person on the international plane.
• However, the realities of international relations are not
reducible to a simple formula.
• The ‘normal types’ have congeners which create problems,
and various entities which are of neither type can have a
certain personality—for example. the International
Committee of the Red Cross (ICRC).

4. THEORIES

5. Cont…

7. NON-STATEENTITIES STATE PROXIMITY City Of Danzig
BELIGERANT ENTITIES
Spanish colonies by USA and
Britain
INTERNATIONAL
ADMINISTERED TERRITORIES
UN Transitional
Administration in East Timor

8. • Legal personality also includes the capacity to enforce one’s
own rights and to compel other subjects to perform their
under international law. For example, this means that a subject
international law may be able to:
(1) bring claims before international and national courts and
tribunals to enforce their rights.
(2) have the ability or power to come into agreements that are
binding under international law (for example, treaties).
(3) enjoy immunity from the jurisdiction of foreign courts (for
example, diplomatic immunity).
(4) be subject to obligations under international law (for example,
obligations under international humanitarian law).

9. C
STATES

10. • The moment an entity becomes a State, it becomes an international legal
person and acquires international legal personality. States are the original
subjects of international law – i.e. international law was created to regulate
relations between States.
• States are the original and major subjects of International Law.
• Their legal personalities derive from the very nature and structure of the
international system.
• All States, by virtue of the principle of sovereign equality, enjoy the same
degree of international legal personality.
• International Law is primarily concerned with the rights, duties and interests of
States.
• Normally the rules of conducts that International Law prescribes are rules
which States are to observe.

11. • This category is by far the most important, but it has its own problems.
• For instance, the existence of ‘dependent’ states with certain qualified
legal capacities has historically complicated the picture, but, providing
the basic conditions for statehood existed, the ‘dependent’ state
retained its personality.
• In some federations (notably those created by a union of states at the
international level), the constituent members retain certain residual
capacities.
• In the constitutions of Switzerland and Germany, component states
are permitted to exercise certain state functions, including treaty-
making.
• Normally, the states, even when acting in their own name, do so as
agents for the union.

12. • The US Constitution enables the states of the Union to enter
into agreements with other states of the Union or with
foreign states with the consent of Congress.
• But this happens rarely if at all, and in most federations, old
and new, the federal government’s power to make treaties
with foreign states is exclusive.
• The position of the International Court, set out
in LaGrand and Avena, is that international obligations under
the Vienna Convention on Consular Relations (VCCR) must
be fully observed irrespective of constitutional limitations,
and, though the means of implementation remain for it to
choose, the federal state incurs responsibility for the wrongful
acts of its subdivisions.

13. C
INTERNATIONAL
ORGANIZATION
S

14. • The conditions under which an organization acquires legal personality
on the international plane are as follows:
• The most important person of this type is the United Nations.
• Entities, acting with delegated powers from states, may appear to
enjoy a separate personality and viability on the international plane.
• By agreement states may create joint agencies with delegated powers
of a supervisory, rule-making, and even judicial character.
• Examples are the administration of a condominium, a standing arbitral
tribunal, the International Joint Commission set up under an
agreement concerning boundary waters between Canada and the US
and the former European Commission of the Danube.
• As the degree of independence and the legal powers of the particular
agency increase it will approximate to an international organization.

15. C
INDIVIDUAL
S

16. • There is no general rule that the individuals cannot be ‘subjects of
international law’, and in particular contexts individuals have rights inuitu
personae which they can vindicate by international action, notably in the
field of human rights and investment protection.
• At the same time to classify the individual as a ‘subject’ of the law is
unhelpful, since this may seem to imply the existence of capacities which
do not exist and does not avoid the task of distinguishing between the
individual and other types of subject.
• Moreover while international human rights law recognizes a variety of
rights for individuals (and even corporations), the norms of human rights
law are not yet regarded as applying horizontally between individuals, in
parallel to or substitution for the applicable national law.

17. • To the extent that some human rights instruments include provisions
dealing with individual responsibilities as well as rights, international
law provides no means for their enforcement.
• In practical terms, human rights (and other obligations assumed for the
benefit of individuals and corporations) arise against the state, which so
far has a virtual monopoly of responsibility.
• Contemporary International Law has recaptured the concern for
individuals, and individuals have become recognized as participants and
subjects of this law.
• This has occurred primarily through the evolution of Human Rights Law
and Humanitarian Law coming together with the evolution of the
Traditional International Law.

18. C
MULTI-
NATIONAL
COMPANIES

19. • Reference to states and similar political entities, to organizations,
and to individuals does not exhaust the tally of entities active on
the international scene.
• Corporations, whether private or public, often engage in economic
activity in one or more states other than the state under the law of
which they were incorporated or in which they have their
economic seat.
• The resources available to the individual corporation may be
greater than those of the smaller states, and they may have
powerful diplomatic backing from their home government.
• Such corporations can and do make agreements, including
concession agreements, with foreign governments.

20. • In this connection in particular, some have argued that the relations of states
and foreign corporations as such should be treated on the international plane
and not as an aspect of the normal rules governing the position of aliens and
their assets on the territory of a state.
• In principle, however, corporations do not have international legal
personality.
• Thus a concession or contract between a state and a foreign corporation is not
governed by the law of treaties.
• On the other hand conduct of corporations may sometimes be attributed to the
state for the purposes of responsibility, and separate state-controlled entities
may be able to plead state immunity before foreign courts.
• It will not always be easy to distinguish such corporations which are so closely
controlled by governments.
• The conferral of separate personality under national law is not conclusive of
autonomy vis-à-vis the state for purposes of international law.

21. C
NON-STATE
ENTITIES

22. C
ENTITIES LEGALLY
PROXIMATE TO
STATES

23. • Political settlements have from time to time produced entities, such as
the former Free City of Danzig, which, possessing a certain autonomy,
territory and population, and some legal capacities on the
international plane, are more or less like states.
• Politically such entities are not states in the normal sense, yet legally
the distinction is not very significant.
• The treaty origin of the entity and the existence of some form of
protection by an international organization—the League of Nations in
the case of Danzig—matter little if, in the result, the entity has
autonomy and a nucleus of the more significant legal capacities, for
example the power to make treaties, to maintain order and exercise
jurisdiction within the territory, and to have an independent nationality
law.

24. • The jurisprudence of the Permanent Court recognized that Danzig had
international personality proximate to that of a state, except insofar as treaty
obligations created special relations in regard to the League and to Poland.
• Under Articles 100 to 108 of the Treaty of Versailles, the League of Nations
had supervisory functions and Poland had control of the foreign relations of
Danzig.
• The result was a protectorate, the legal status and constitution of which were
externally supervised.
• To describe legal entities like Danzig as ‘internationalized territories’is not
very helpful since the phrase covers a number of distinct entities and
situations and elides the question of legal personality.
• The point is that a special status may attach without the creation of a legal
person.
• An area within a state may be given a certain autonomy under treaty
without this leading to any degree of separate personality on the
international plane: this was the case with the Memel Territory, which had a
special status in the period 1924 to 1939 yet remained part of Lithuania

25. (City of Danzig)
• The Free City of Danzig was a semi-autonomous city-state that existed between 1920 and 1939,
consisting of the Baltic Sea port of Danzig (now Gdańsk, Poland) and nearly 200 towns and villages in
the surrounding areas.
• It was created on 15 November 1920 in accordance with the terms of Article 100 (Section XI of Part III) of
the 1919 Treaty of Versailles after the end of World War I.
• The Free City included the city of Danzig and other nearby towns, villages, and settlements that were
primarily inhabited by Germans.
• As the Treaty stated, the region was to remain separated from post-World War I Germany and from the
newly independent nation of the Second Polish Republic ("interwar Poland"), but it was not an
independent state.
• The Free City was under League of Nations protection and put into a binding customs union with
Poland.
• Poland was given certain rights pertaining to communication, the railways and port facilities in the city.
• The Free City was created in order to give Poland access to a well-sized seaport. The Free City's
population of 410,000 was 98% German, 1% Polish and 1% other.
• However, in the 1920 Free City of Danzig Constituent Assembly election, the Polish Party received over
6% of the vote, the percentage of votes later declined to about 3%.

26. C
ENTITIES
RECOGNIZED AS
BELLIGERENTS

27. • In practice, belligerent or insurgent bodies within a state may enter
into legal relations and conclude agreements on the international
plane with states and other belligerents/ insurgents.
• Fitzmaurice has attributed treaty-making capacity to ‘para-Statal
entities recognized as possessing a definite if limited form of
international personality, for example, insurgent communities
recognized as having belligerent status—de facto authorities in
control of specific territory’.
• This statement is correct as a matter of principle, but its application to
particular facts requires caution.
• A belligerent community often represents a political movement aiming
at secession: outside the colonial context, states have been reluctant
to accord any form of recognition in such cases, including recognition
of belligerency

28. C
INTERNATIONAL
ADMINISTRATION
OF TERRITORIES
PRIOR TO
INDEPENDENCE

29. • In relation to territories marked out by the UN as under a regime of
illegal occupation and qualified for rapid transition to independence,
an interim transitional regime may be installed under UN supervision.
• Thus the final phase of Namibian independence involved the UN
Transition Assistance Group, established by SC Resolution 435 (1978).
• In 1999 the long-drawn-out crisis concerning the illegal Indonesian
occupation of East Timor was the subject of decisive action by the
Security Council.
• SC Resolution 1272 (1999) established the UN Transitional
Administration in East Timor (UNTAET) with a mandate to prepare East
Timor for independence.
• UNTAET had full legislative and executive powers and assumed its role
independently of any competing authority. After elections, East Timor
(Timor-Leste) became independent in 2002.

30. • Following the dissolution of the Socialist Federal Republic of
Yugoslavia (SFRY), civil war broke out in the disputed, previously self-
governing, territory of Kosovo, ending with NATO military
intervention.
• The Security Council in Resolution 1244 (1999) put in place the
framework for an interim civil administration, further elaborated by
regulations of the UN Mission in Kosovo (UNMIK). UNMIK regulation
2001/9 of 15 May 2001 set out a Constitutional Framework for
Provisional Self-Government, dividing administrative responsibilities
between UN representatives and the Provisional Institutions of Self-
Government of Kosovo.
• Following unsuccessful negotiations between Serbia and Kosovo
regarding final status, on 17 February 2008 a declaration of
independence of Kosovo was adopted, giving rise to a request by the
General Assembly for an advisory opinion.

31. • On the one hand, the Court held, ‘[t]he Constitutional
Framework derives its binding force from the binding
character of resolution 1244 (1999) and thus from
international law. In that sense it…possesses an international
legal character’.
• On the other hand ‘[t]he Constitutional Framework…took
effect as part of the body of law adopted for the
administration of Kosovo during the interim phase’, and it
did not dispose of the territory beyond that phase.
• SC Resolution 1244 (1999) could not be interpreted as
precluding all action aimed at resolving the impasse which
the parties beyond question had reached